Mr X and Department of Public Expenditure and Reform

Case Number: 160043

Whether the Department was justified in its decision to refuse access to records concerning Innovation Fund Ireland (IFI) on the basis of sections 28(1), 29(1), 30(1)(c) and 40(2) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to the Department on 26 May 2015 for access to records pertaining to any communications the Department had with any Government body relating to Innovation Fund Ireland (IFI). The applicant made the same request to the Department of Finance (DOF) which decision was reviewed by this Office under case reference number 160034. In its decision of 3 July 2015, the Department released 13 records and refused access to eight records on the basis of sections 28(1), 29(1), 30(1)(c) and 40(2) of the FOI Act. Using the numbering system adopted by the Department, these records are identified as numbers 8, 9, 10, 12, 13, 17, 19 and 21 This decision was upheld by the Department in its internal review decision of 31 July 2015.

The applicant wrote to this Office seeking a review of the Department's decision on 27 January 2016. He claimed that further records ought to be released and that redactions might not be accurate.

A submission from the Department has been received and the applicant provided a submission in the DOF case (160034) which is also relevant to this case. I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submissions from the applicant and the Department and to correspondence between them. I have examined the contents of the records provided to this Office for the purposes of this review by the Department and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access to records 8, 9, 10, 12, 13, 17, 19 and 21 under sections 28(1), 29(1), 30(1)(c) and 40(2) of the FOI Act. The applicant's submissions included a detailed analysis of his experiences of engaging with many State bodies in relation to allegations of mismanagement of Government funds; however, my remit under the FOI Act is confined to considering his right of access to the records at issue.

Analysis and Findings

Section 18

Firstly I should draw attention to section 18 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b)

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 25(3)

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Section 30(1)(c)

Section 30(1)(c) is one of the exemptions claimed to refuse access to records 8, 9, 10, 19 and 21. This is a discretionary exemption which allows an FOI body to refuse a request if access to the record could reasonably be expected to "disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body". It is subject to a public interest balancing test contained in subsection (2).

Section 30(1)(c) does not require any expectation of harm; it applies where the granting of access can reasonably be expected to disclose certain information. An FOI body relying on this exemption must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any negotiations.

According to the Department, all of these records were created as part of the Government's effort to create a venture capital fund which would fulfil the Government's requirements and would also be attractive to potential investors. It contends that it is important that the State's position in relation to negotiations with potential investors should not be disclosed as it could prejudice any similar future negotiations as the State's position would be clear from the internal documentation.
I note that records 9, 10, 19 and 21 withheld under this exemption can be described as disclosing positions taken by the public bodies involved for the purpose of negotiations of the kind described in the DOF case (160034) and that section 30(1)(c) therefore applies. However, I can see no such position on any negotiations disclosed in the content of record 8 which I address separately below.
As outlined above, section 30(1)(c) is subject to a public interest balancing test. As explained in the DOF case, if release of the records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test.
The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act. However, where the release of the record discloses positions taken for the purposes of negotiations which could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a public interest factor weighing in favour of refusing the request.

In relation to the information to which section 30(1)(c) has been found to apply, the Department has identified potential impact on future negotiations. I am satisfied that the public interest is served to some extent by the information which has been released and I find that on balance the public interest would not be better served by release of the information to which section 30(1)(c) applies. Therefore, I find that the withheld records 9, 10, 19 and 21 are exempt from release on the basis of section 30(1)(c) of the FOI Act.

As I have found that the Department was justified in refusing access to these records under section 30(1)(c), I do not consider it necessary to examine the application of the other sections of the Act relied on for these records.

Records 12, 13 and 17

Section 15(1)(i)(i)
In case number 160034, the DOF granted the applicant access to the Project Appraisal document which is identical to record 12 in this case. Accordingly, I find that the Department is justified in withholding this record under section 15(1)(i)(i) of the FOI Act, on the basis that the record is already available to the applicant.

Section 28

Copies of Memos for Government included in this case, identified as records 13 and 17 are identical to records 2.9 and 2.12 in the DOF case. In that case, I found that these records are exempt on the basis of section 28(1) of the FOI Act. I then went on to consider section 28 (3) and found that section 28(1)(a) does not apply, by virtue of the provisions of section 28(3)(a), to parts of the records as they contained factual information relating to a decision of the Government that has been published to the general public. I see no reason to deviate from that position and therefore I find that the parts of records 13 and 17 identified in the DOF decision (records 2.9 and 2.12) are exempt on the basis of section 28(1) of the FOI Act.

I should add here that I reject the Department's arguments that certain other records (those dealt with above under section 30(1)) also qualify for exemption under section 28(1)(a) as emails commenting on the subject of the draft Memos are not records that have been or are proposed to be submitted to the Government and they clearly were not created for that purpose.

As I have found that the Department was justified in refusing access to these records under section 28(1) and 15(1)(i)(i), I do not consider it necessary to examine the application of the other sections of the Act relied on for these records.

Record 8

Whilst I cannot disclose its content, I can say that the email exchanges between officials in this record relate to certain data profiles. The record does not identify any company or any issue/positions that might be the subject of negotiations. The Department has not identified any particular data which would be sensitive from the point of view of negotiations (section 30(1)(c)) and I find that it has not justified its refusal of access to record 8 under that exemption. Further, as I have pointed out above, I do not accept that the section 28(1)(a) exemption has any application to a record that was not submitted to Government.

Section 29 - Deliberations of FOI bodies

Among the exemptions claimed by the Department in respect of records 8, 13(part) and 17(part) is Section 29(1). This provides that (a) an FOI body may refuse to grant a request if the record concerned contains matter relating to the deliberative process of an FOI body and (b) the granting of the request would be contrary to the public interest. For section 29(1)(a) to apply, the record must contain matter relating to the deliberative process and the process must be the deliberative process of an FOI body. Secondly, section 29(2) provides that section 29(1) does not apply in certain circumstances. The exemption is subject to a public interest test and the public interest test is stronger than the public interest test in other provisions of the Act - it must be shown that the granting of the request would be contrary to the public interest.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

Having examined record 8, the remaining parts of records 13 and 17 and the submissions of the Department, I am not satisfied that the content of the records themselves could be considered to relate to a deliberative process in that there is no evidence of consideration of options or proposals and the information provided would appear to be more of a clarification rather than a consideration with a view to deliberating on a particular decision.

In any case, in order for section 29(1) to apply, it must be shown that release of the information would be contrary to the public interest. While the Department has referred to the public interest in its submission, it has not demonstrated that release of this record would be contrary to the public interest. It has not advanced any contention that the requester would become aware of a significant decision the FOI body proposes to make if the record was released. Therefore, I find that the Department has not justified its claim for section 29 to apply to any part of the identified records and that it does not apply.

Section 40

The Department further claimed that records 8, 13(part) and 17(part) were exempt under section 40(2)(i), (j), (n) and (p). I take it that it intended to rely on section 40(1) which is the relevant discretionary exemption.
Section 40(1) states that a "head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head-
(a) access to the record could reasonably be expected to have a serious adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State,

(b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature,

(c) access to the record could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states, or

(d) access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons."

Section 40(2) sets out a list of the types of records to which this section may apply. The particular types cited by the Department are (i) property or other assets or transactions; (j) foreign investments; (n) information the disclosure of which could reasonably be expected to adversely affect the competitive position of a public body and (p) investment or financial support by the State or a public body

For section 40 to apply, one of the four limbs of subsection (1) must apply; the list set out in subsection (2) is illustrative of what might be protected under sub-section (1). Subsection (1) does not apply, moreover, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 40(3) refers).

The basis of the Department's claim is that any consideration of Venture Capital Funds is, of its nature, commercially sensitive and involving the financial interests of the State. However, it asserts that the exemption applies without reference to any harms envisaged by the disclosure of the particular details in records 8, 13(part) and 17(part). Given the content and the historic nature of the data involved, I am not satisfied from the content of the records or from the Department's submissions that access to the records concerned could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy. Neither has the Department justified a position that access to these records could reasonably be expected to have a negative impact on decisions by enterprises to invest in the State or on the effectiveness of industrial development strategy or result in an unwarranted benefit or loss to a person or class of persons. I find that the Department has not justified its refusal of access to records 8, 13(part) and 17(part) under section 40(1). In the circumstances, it is not necessary for me to address the matter of the public interest.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I affirm the decision to refuse access to the withheld records on the basis of section 15(1)(i)(i), section 28(1) and section 30(1)(c) of the FOI Act with the exception of the records identified above. I annul its decision in realtion to records 8, 13 (part) and 17 (part) and direct their release.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.